The Practical Lawyer

October 24-30, 2016

No more ‘3 extra days’ to respond after electronic service in federal courts

By Ethan C. Nobles

Unless Congress says different, the “three extra days” rule to respond in federal courts will be eliminated effective Dec. 1 for documents served by electronic means.

The old rules will still apply to documents served by mail and other, traditional means. For those keeping score at home, that means that Federal Rule of Civil Procedure 6(d) and Federal Rule of Criminal Procedure 45(c) will be changed so that references to electronic service are removed when giving people three extra days to respond to pleadings.

Of course, the “three extra days” rule came about when service was traditionally made by mail – service was considered carried out on the day a pleading was mailed to opposing counsel, but the extra time was added to allow for actual delivery. That delivery time is deemed eliminated when it comes to electronic service, but respondents were still given three days to respond due to perceived problems with technology, etc.

Since those problems have been largely removed over the years, the “three extra days” rule has – apparently – become obsolete. It’s worth mentioning that the rule will impact virtually everyone who practices in federal courts because everything is handled electronically these days – pleadings are transmitted to federal courts and then send instantly to everyone who is on a case.

But, what about Arkansas? We have that “three extra days” rule build into the Arkansas Rules of Civil Procedure and Arkansas Rules of Criminal Procedure, too. Are any changes in place here in the Natural State?

A quick perusal of pending per curiam orders from the Supreme Court of Arkansas regarding any pending rules changes reveals that nothing is in the works as of yet. A call to the Arkansas Supreme Court Committee on Civil Practice turned up the same thing, but that’s not to say that Arkansas won’t follow the lead set by federal courts soon.

While a lot of counties in Arkansas don’t offer electronic filing to attorneys yet, there is a statewide system allowing for such filing and it is being implemented in an increasing number of areas. Any attorney who has used the Arkansas Judiciary’s Electronic Filing system can tell you that it is a very effective way to effect service on all parties involved in a case. With that system, then, the “three extra days” rule does seem as obsolete as it does on the federal level.

And, of course, it has become very common for attorneys to effect service through email even in counties that don’t offer electronic filing. It might be a smart move, then, to start acting like that “three extra days” rule has been eliminated so it will be second nature to overlook it should it be removed in Arkansas for pleadings served electronically.

Ethan C. Nobles is an attorney in Benton focusing on real estate, evictions, contracts, wills, trusts, incorporations, bankruptcy and other areas of law as the mood strikes. You can reach him at Ethan@NoblesLawFirm.com or visit him on the Internet at NoblesLawFirm.com.